v. Roehrs, 2019 COA 31

At a dependency-and-neglect hearing Judge Theresa Cisneros presided while Sergeant Couch testified about defendant Dana Roehrs’s conduct at the scene of an investigation.
During that hearing Roehrs stood, approached the witness, accused him of lying, was ordered out of the courtroom, and later allegedly threatened him in a courthouse hallway; some of this conduct occurred in front of Judge Cisneros.
The State charged Roehrs with retaliation against a witness, harassment, and intimidating a witness; Judge Cisneros later was assigned to preside over Roehrs’s criminal trial on those charges.
Roehrs moved to recuse Judge Cisneros, arguing the judge had personal knowledge of disputed facts and was a material witness; the judge denied the motion and proceeded to preside over the trial.
A jury convicted Roehrs of retaliation and harassment; on appeal the Court of Appeals reversed, holding the judge’s prior observation of alleged criminal acts created an appearance of partiality requiring recusal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Judge Cisneros had to recuse after witnessing part of the alleged offense	Extrajudicial-source doctrine protects judges from disqualification for knowledge gained performing judicial duties; no recusal required	Judge had personal knowledge of disputed facts from courtroom and chambers, creating appearance of impropriety and requiring recusal under C.J.C. 2.11(A)(1)	Held for Roehrs: personal knowledge of disputed facts from witnessing the conduct created a substantial appearance of impropriety; recusal required
Procedural sufficiency of motion to recuse (affidavit requirement)	Motion defective because statute/Crim. P. 21 required two supporting affidavits; should be denied on procedure	Affidavit by counsel and judge’s awareness of the facts cured the defect; court should address merits	Court reached the merits despite technical deficiency because judge knew and did not dispute the facts; merits controlled
Whether Judge Cisneros was a "likely material witness" requiring recusal	If judge is likely to be a material witness she must be disqualified	Judge was not a necessary witness because others (Sergeant, attorneys) could testify to the events	Court declined to rely on material-witness ground (judge not sole source), but disqualified based on personal knowledge of disputed facts under Rule 2.11(A)(1)

Liteky v. United States, 510 U.S. 540 (1994) (extrajudicial-source doctrine limits disqualification but is not absolute)
In re Murchison, 349 U.S. 133 (1955) (fair tribunal and due process require impartial judge)
Wright v. Dist. Court, 731 P.2d 661 (Colo. 1987) (judge’s prior participation creating appearance of impropriety warranted disqualification)
In re Estate of Elliot, 993 P.2d 474 (Colo. 2000) (judge’s personal involvement and potential witness role required substitution)
People v. Botham, 629 P.2d 589 (Colo. 1981) (motion to disqualify legally sufficient if facts permit reasonable inference of bias)